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Monday, 3 June 2013

In recent weeks, there have been a series of controversies in the United States over the Justice Department snooping on journalists as part of aggressive investigations into leaks of classified information.

The most egregious case involves Fox News reporter James Rosen, whose private emails were secretly obtained, his phone records grabbed, and his movements to and from a government building electronically tracked. Rosen sparked a leak investigation after he authored a story in 2009, based on US intelligence passed to him by an anonymous source, concerning possible nuclear tests in North Korea in response to United Nations sanctions.

The case has attracted widespread coverage, and the extent of the monitoring of Rosen — and the FBI's accusation that he was "an aider, abettor and/or co-conspirator” who committed a crime for merely reporting news — has outraged media organisations. Some high-profile figures, including the lawyer James Goodale, have called for attorney general Eric Holder to resign for authorizing the surveillance.

But one element of the Rosen case has been largely overlooked: that is, the role of Google in handing over Rosen's emails. That is a point made by WikiLeaks founder Julian Assange in an opinion piece for the New York Times published Sunday. "There has been little analysis of Google’s role in complying with the Rosen subpoena," Assange noted.

I have been looking into this very issue in the past week, and so it seems like a good time to lay out what I've learned.

In 2010, it emerged last month, Google was ordered to hand over Rosen's emails and other data as part of a search warrant signed off by magistrate judge Alan Kay. Here is a list of what Google was told to give the FBI from Rosen's Gmail account, according to court documents:

An "exact duplicate" of all communications between Rosen's Gmail account and three named email accounts deemed of investigative interest, two of which were @yahoo.com and one @gmail.com. Specifically: all emails sent or received by Rosen to and from any of the three accounts, whether marked "cc," "bcc," "fwd," or "sent"; any deleted messages; messages maintained in the trash folder or other folders (i.e. drafts); and copies of attachments sent between Rosen and the three named accounts including videos, documents, and photographs.

ALL communications sent to and from Rosen's Gmail account on 10-11 June 2009, from or to ANY address (i.e. not just the three named accounts). Specifically, as above, the FBI sought: messages marked "cc," "bcc," "fwd," or "sent"; any deleted messages; messages maintained in the trash folder or other folders (i.e. drafts); and attachments including videos, documents, and photographs.

Google was told that it must keep the warrant secret and should not "notify any other person... of the existence of the warrant." The question is: could Google have challenged the lawfulness of this contentious warrant and fought in the courts in an attempt to notify the journalist?

I asked Google, but the company said its policy was not to comment on specific cases. What I was able to establish, however, is that when Google receives an order to turn over user data as part of a search warrant, in most cases it does not see the full affidavit from the FBI investigator that details the specifics of the case — and the FBI has no legal obligation to inform Google of the specifics because a judge has already reviewed and signed off on it.

But crucially, what Google does sometimes see, a well-placed source told me on condition of anonymity, is an "attachment" that occasionally accompanies a warrant ordering it to disclose certain information. The attachment is an important document because it details the specific types of data investigators expect Google (or any other given company) to turn over. It also sometimes contains a note for the authorities detailing what they should look for in the data once it is disclosed.

In the Rosen case, there was a six-page attachment that detailed all of this. You can read it here. It breaks down the data Google was ordered to turn over, and it also has instructions for the investigators. If Google received this document before turning over Rosen's emails, in my view the company could fairly easily have established that this was a warrant to obtain private data on a journalist and his source.

How? The Rosen attachment, though it does not explicitly name Rosen or Fox News, outlines that the FBI is looking to find evidence concerning violations of the Espionage Act (18 USC § 793), a law that has been used at least seven times by the Obama administration to prosecute people for disclosing classified information. The attachment explains that the FBI is seeking to obtain communications between a man named Stephen Kim (the alleged source of the Fox News story) and the "author of [an] article that is the subject matter of the FBI investigation that is the basis for this warrant." The attachment also refers to "classified and/or intelligence information" and mentions that the FBI is seeking to find evidence in the emails that Stephen Kim and/or "the author" had knowledge of government rules or procedures regarding communicating with "members of the media." It adds that it is seeking to find evidence of the "author's communication with any other source or potential source of the information disclosed in the article," making it clear that it is a journalist's email being targeted.

Google would not tell me whether or not it had seen this attachment, again saying that its policy is not to "discuss the specifics of any particular case." But if the company did see it and did not seek to level any legal challenge, there is a legitimate and serious question to be asked concerning the extent of its complicity in the government's surveillance of a journalist in order to expose a confidential source. Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation, told me that while it is unusual and difficult for a company to challenge a search warrant because a judge has already reviewed and signed off on it, it is still possible to challenge. "Theoretically a challenge to the search warrant would go back to the judge who signed it, who I imagine would be reluctant to change their mind (though you never know)," Fakhoury said in an email.

This also raises questions for me about how closely Google scrutinizes individual warrants and court orders before turning over users' private data. Google has a fairly solid trackrecord of standing up to government snooping that it deems disproportionate, and it has commendably pioneered the publication of transparency reports showing government requests to censor Internet content and obtain users' data. But if it turns out Google's legal team were sent the attachment in the Rosen case and did not even attempt to challenge the lawfulness of the warrant, as seems possible, the company's reputation for standing up for users' rights will take a hit — and deservedly so — not least because the spying on Rosen stands out as such a flagrant example of government overreach and excessive surveillance.